2012 Annual Survey of Violations of Trade Union Rights - Fiji
|Publisher||International Trade Union Confederation|
|Publication Date||6 June 2012|
|Cite as||International Trade Union Confederation, 2012 Annual Survey of Violations of Trade Union Rights - Fiji, 6 June 2012, available at: http://www.refworld.org/docid/4fd88950c.html [accessed 28 April 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified:
29 (Forced Labour (1930))
87 (Freedom of Association and Protection of the Right to Organise (1948))
98 (Right to Organise and Collective Bargaining (1949))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
111 (Discrimination in Employment and Occupation (1958))
138 (Minimum Age for Employment (1973))
182 (Worst Forms of Child Labour Convention (1999))
Reported Violations – 2012
Documented violations – actual number of cases may be higher
The Fijian government, led by a military junta since a 2006 coup d'etat, launched an aggressive campaign in 2011 to dismantle the trade union movement by use of brute force, by jailing trade union leaders and by issuing executive decrees that together have deprived most Fijian workers of their fundamental international labour rights.
The Fijian government has been led by a military junta since a 2006 coup d'etat.
The media are still heavily censored. Article 16 of the Public Emergency Regulations places all media under government control, by requiring that all broadcasters and editors present any materials that may be published or broadcast for prior review. Military personnel are present in all media outlets and screen all news. Comments by the public, trade unions and civil society organisations are denied publication. Many trade unions have stopped sending out newsletters for fear of sanctions.
On 18 November 2011 the Charitable Trusts Amendment Decree (Decree 48) was enacted. The Decree gives the Prime Minister unchecked discretion to cancel the incorporation of the board of any charitable organisation that receives any government funding if the Prime Minister "is satisfied that the charitable trust has failed to achieve its objects, or that the board of trustees have acted contrary to the objects of any such charitable trust." If dissolved, the trustees must furnish within 14 days their certificate of incorporation and a list of all assets and liabilities or face a FJD5,000 fine and/or two years imprisonment. Numerous Fijian NGOs are chartered under the Charitable Trusts Act; they are deeply concerned that Decree 48 will be used to usher in a crackdown on civil society organisations that are perceived to be critical of the government. The Citizens Constitutional Forum, an NGO coalition forum, has denounced the decree.
Trade union rights in law
Many excessive restrictions exist despite recent improvements. Freedom of association is secured in the Constitution, and the Employment Relations Promulgation (ERP) 2007 adequately protects workers against anti-union discrimination. However, the Registrar has discretionary powers to refuse to register a union with an "undesirable" name, as well as to cancel the registration of a union in cases provided by the law. Furthermore, a new Decree adopted in 2011 excludes a number of categories of public employees from the scope of application of labour legislation.
While the ERP promotes and encourages collective bargaining, legislation adopted in 2011 allows non-union representatives as collective bargaining agents. The same legislation provided that all existing collective agreements were null and void 60 days after it entered into force, and new agreements were to be negotiated by the parties before the expiration of this deadline, otherwise the employer was entitled to unilaterally implement new terms and conditions through a new collective agreement or individual contract. Furthermore, according to the new law, employers may renegotiate all their collective agreements if they are considered to be in financial distress; if bargaining fails to result in a new collective agreement, the employer may submit its proposals for a new or amended collective agreement to the Prime Minister for review, and the Prime Minister shall make a decision on the new terms and conditions of the new or amended collective agreement.
The right to strike is limited:a strike can not be called in relation to union recognition, and must always be approved by more than 50% of the paid-up members. In addition, unions are required to give 21 days' notice prior to calling a normal strike, and 49 days in "essential" industries. Furthermore, the names of all the strike participants must be communicated to the Ministry of Labour, which also has the right to declare an existing or proposed strike unlawful, in which case the dispute is referred to arbitration. Both the Ministry and the employers can also impose compulsory arbitration when the strike is not considered to be in the public interests or could jeopardise the economy. Trade unionists can face criminal charges and risk imprisonment if they persist with strike action.
Link to additional detailed information regarding the legislation on the ITUC website here
A de facto ban on trade union activity:
The Public Emergency Regulations (PER) of 2009 gave unchecked powers to the regime to ban much public assembly in Fiji. In 2011, the regime selectively denied requests for meetings, using the excuse that the meeting convenors were opposed to government policy. In other cases, the police revoked previously-awarded permission and then broke up the meetings.
In the most extreme case, the Fiji Trades Union Congress (FTUC) President, Daniel Urai, and Nitin Goundar, an organiser for the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE), were arrested, detained and charged under the PER for meeting with trade unionists at the hotel where they worked to prepare for collective bargaining. The case remains pending at year end, though the government has yet to produce the required disclosures – including the identity of the person or persons accusing the two of violating the PER (which is required in order to proceed with the case).
It remains unclear whether those charged under the PER will continue to be prosecuted following its repeal. Trade unionists reported that the government instituted a de facto ban on trade union meetings immediately following the visit of Guy Ryder, ILO Executive Director of the Standards and Fundamental Principles and Rights at Work Sector, in August 2011. Essentially all requests are either denied or simply never acted upon before the date of the proposed meeting. Far from being just a nuisance, the ban has had far reaching implications on industrial relations (except in those very few cases where employers continued to cooperate with the unions in spite of the PER).
Essential Industries Decree undermines trade union movement:
The Essential Industries Decree of 2011, which currently covers the financial sector, telecommunications, civil aviation and public services, severely restricts trade union rights. On 13 September, ILO Director General Juan Somavia denounced the decree, stating: "By going ahead with this Decree the government has demonstrated the same lack of concern for the views of the international community as it has for the rights and aspirations of its own people. That means reversing this and other restrictive labour decrees, a return to dialogue with trade unions and employers, an end to assaults on and harassment of trade unionists, and the immediate restoration of basic civil liberties."
Memos surfaced in 2011 suggesting that the decree was written for the regime by a U.S.-based law firm, whose fees were paid for in part by Air Pacific, the Fijian national airline; 46% of its shares are also owned by the Australian air carrier Qantas.
Two articles of the Essential National Industries Decree in particular have devastated trade unions in the sectors concerned. First, Article 2 of the decree provides that the bargaining unit must consist of 75 or more members. In many cases, there are fewer than 75 workers in a job classification, eliminating the right of such workers to form a unit under the decree. Second, Article 7 requires that bargaining unit representatives be employees of the employer with whom they are bargaining. In most cases in Fiji, there is little leadership, institutional structure or expertise at the branch level, with union leadership and technical capacity centralised at the national union level. These people are employees of the union and not of any of the employers where their members are employed. Thus, the relationship between the union leadership and the rank and file is effectively severed by the decree. Those union representatives who attempt to support the bargaining efforts of inexperienced new bargaining units can face stiff penalties and prison terms under the law.
Employers in sectors not even covered by the decree have invoked it in order to justify elimination of dues deductions, unilateral changes to collective agreements and refusal to bargain.
Workers are resigning from unions en masse, as they either see no use in belonging to an institution that cannot effectively represent them, are threatened by management to leave the union, or resign out of a general fear that trade unionism is a dangerous undertaking in Fiji today. The decree also bans the automatic deduction of trade union dues from workers' salaries (unless the employer agrees to do so). Some leaders predicted that their unions would not be able to hold on financially for too much longer unless the situation changed quickly.
Army keeps close control over sugar mills:
Since 2009, sugar mills have been occupied by the military, which has assumed control over many aspects of their operations – including human resources. The Fiji Sugar and General Workers Union (FSGWU) reports that the military has assumed the power to discipline and fire workers. The President of the FSGWU – Ba Branch was beaten by military officers on 18 February 2011, along with Felix Anthony, the national secretary of the Fiji Trades Union Congress (FTUC), and again on 22 June. In conjunction with the second attack on the president, he was suspended from work for two weeks without pay and was transferred from his job as a locomotive driver to that of a general employee in the track shop (which implied a drop in wages from USD4.17 to USD3.64 per hour). The military stated that the reason for the transfer was his status as a trade union leader.
The military interrogated the union president on a monthly basis in 2011, accusing him of sabotaging the Fijian sugar industry. He reported that the soldiers told him that "if you make one wrong move, we will kill you." In June 2011, the Commissioner Western Division (a civilian post occupied by a Lieutenant-Colonel) announced at a meeting with mill workers that there is no longer a union representing mill workers. In November 2011, HR manager Subril Goundar told the union president that he would no longer recognise him as the representative of the workers. On several occasions, Mr Goundar called in workers to his office to discharge or discipline them; there was no investigation or any consultation with union representatives. The grievance machinery and progressive discipline machinery in the CBA, which remains in force, has been ignored. Workers who are caught talking to the union president have been threatened by management and the military with discipline or discharge.
Despite annual wages increases provided for in the CBA, Mr Khalil reports that there have been no wage increases for several years. Further, overtime provisions are routinely violated, with workers either not being paid the overtime premium (1.5-2x) or not being paid at all for overtime work. Indeed, the CBA is respected only in the breach. Cases have been filed over dismissals and other breaches of the CBA. However, these cases are slow to be processed, if ever. The Ministry, which receives the cases and provides mediation, often delays action on the cases for months on end.
Widespread violations in sugar cane plantations:
The Sugar Cane Growers Council was disbanded in 2009. With the dismantling of these various institutions, unions allege that the cane growers have been completely side-lined from the industry, over which the Fiji Sugar Corporation (FSC) now has total monopoly. Furthermore, since it is no longer obliged to cooperate on industry matters, it has begun to withhold vital information that growers are entitled to under the partnership provisions. Further, the National Farmers Union, as the largest trade union representing cane growers, was prevented from holding its general body meeting and branch annual general meetings in 2011. These meetings, which are generally held before the onset of the crushing season, are used as a forum to discuss problems farmers face as harvest gets underway. In recent months, they have been unable to hold any meetings at all. In 2010, dues deductions were also halted.
In 2010, the Labasa Cane Producers Association (LCPA), which covers cane growers in the Northern Division, was created. According to trade unions, the LCPA is not a representative institution of cane growers and is under the influence of the FSC. Trade unionists were also adamant that they were not consulted about the formation of the LCPA. FTUC also reports that the military intimidated and threatened farmers into joining the LCPA – while at the same time the government instructed the FSC to stop dues deduction from NFU members. Farmers were also told that by joining the LCPA, they would get a higher price for the cane supplied to the FSC – which did not in fact materialise. The NFU also states that access to services has been restricted if the farmer is not a member of the LCPA.
The LCPA is established under the Industrial Organisations Act. Article 3.1(iii) of the LCPA constitution provides that officials of any other industrial association or political party cannot be office bearers of the LCPA – meaning that no trade union officer can ever be part of the governing body of the LCPA. Similar cane producer associations are planned but not yet established for the other cane growing regions. The Western Division is expected to be next.
Rights of civil aviation workers denied:
The Essential National Industries Decree (ENID) has severely affected the membership base of the Transport Workers Union (TWU), which represents cabin crew, baggage handlers and engineers. Roughly 90% of TWU members are employed by Air Pacific. Article 2 of the ENID defines a "bargaining unit" as a group of at least 75 workers employed by the same employer. However, only the cabin crew collectively number more than 75 workers.
All other groups fail to meet that threshold and are thus ineligible to form a new bargaining unit. These workers have individual contracts that were drafted and imposed by management. Dues deduction was also eliminated. With the elimination of the non-cabin crew members, the union lost 50% of its members overnight – roughly 250 workers. The cabin crew have a bargaining unit which was recognised by management. However, under Article 7 of the ENID, the leaders and staff of the TWU, who are not employed by Air Pacific, cannot represent the bargaining unit and engage in bargaining on their behalf. It is reported that members are under strong pressure to withdraw from the TWU. Within the 60 days provided in the ENID, Air Pacific imposed a new CBA which diluted the wages and took back previous gains with regard to overtime pay, meal allowances, clothing allowances, annual leave, sick leave, etc.
There are 78 pilots for Air Pacific, just over the minimum required to form a new bargaining unit under the ENID. The decree gave the parties 60 days to negotiate a new agreement. The union signed a contract with Air Pacific at 4am on 9 November after lengthy and difficult bargaining. The situation forced the union to accept major concessions in the new agreement. These include reductions in annual leave, sick leave and the elimination of long service leave. The contract also contains deep cuts to travel and meal allowances which reduce significantly the amount pilots are compensated. The union bargained with the company on the basis of the old numbers which reflected poor profitability. However, just after the agreements were signed between Air Pacific and the various bargaining units, Air Pacific announced greatly improved profits for the company for the previous year. The union believes that the timing of the profit results was intentional and that the union was intentionally misled. If the results had been released earlier, the arguments given for the application of the ENID at Air Pacific wouldn't have held.
Air Pacific is also a major client of Air Terminal Services (ATS), which provides ground handling services at Nadi International Airport, including line maintenance, catering and cabin services, freight sales and handling. ATS is owned by the Government of Fiji (51%) and its employees (49%). Its workers are represented by the Federated Airlines Staff Association (FASA), which has a chair on the ATS Board.
Rajeshwar Singh, FTUC representative on the ATS Board, was removed from the board on 31 December, just days after being reappointed unanimously. The government claimed that he breached his fiduciary duty to the ATS board because of his meeting with Australian trade unionists urging a boycott. Mr Singh does not deny the meeting but rejects the allegation that he called for a boycott. FASA reported that permits to meet were routinely denied for no reasons, and in some cases in the past permits were granted and then revoked at the last minute once the union had taken on the costs of renting meeting space. They also believe that their telephones are monitored and are thus very circumspect about what they say.
Fiji's top trade union leader subjected to beatings and threats:
Felix Anthony, National Secretary of the Fiji Trades Union Congress (FTUC) and General Secretary of the Fiji Sugar and General Workers' Union (FSGWU), was arrested, threatened, insulted and beaten up several times by government agents.
On the evening of 12 February, three military officers took him from his home to military barracks in Lautoka, before taking him back home. During the transfer officers threatened him and his family.
On 18 February, Felix Anthony was told the Prime Minister wanted to meet him at a sugar mill in Ba, in Western Fiji. He attended the meeting with two other trade union leaders, including the president of the Ba branch of the FSGWU. Following the meeting the three union officials were beaten by army officers. Mr. Anthony's eardrum was damaged as a result of the beating and the two other trade union leaders also needed medical attention. They were released that evening under threat of further violence. On 1 April, Felix Anthony was again threatened by one of the military officers who had already given him a beating.
When the FTUC nominated Mr. Anthony to participate in the 100th session of the International Labour Conference in June in Geneva, the government failed to submit his credentials (he was finally able to participate thanks to the help of the ITUC). On 4 November, he was again held in police custody (without charge) while the police searched his union's offices and his home.
Felix Anthony was prohibited from travelling abroad in the last few months of the year, without any justification by the regime. He lodged a complaint against the government because of the ban, but the clerk of court refused to register it.
FTUC President arrested twice on baseless charges: On 3 August, Mr Daniel Urai, President of the Fiji Trades Union Congress (FTUC) and General Secretary of the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE), and Nitin Goundar, an organiser with NUHCTIE, were detained and questioned at the Nadi Police Station, apparently for having met with union members regarding pending collective negotiations. They were released on bail on 4 August. On 29 October, Mr Urai was arrested again, this time at the airport upon his return from the Commonwealth Heads of Government Meeting in Perth, Australia, where he spoke out against human and trade union rights violations perpetrated by the Fijian government. He was again released on bail, but was accused of "inciting political violence by urging to overthrow the government". Mr. Urai is subject to a curfew that restricts his freedom of movement in the country. By the end of the year the case concerning the two charges against him had still not been heard.
Freedom of Association Committee again calls for the reinstatement of Mr. Koroi: In November, the ILO Committee on Freedom of Association again recommended to the government that Mr. Koroi be reinstated immediately to his previous role as principal, with no loss of salary or benefits. Tevita Koroi, President of the Fijian Teachers' Association (FTA) and a member of the Council of Pacific Education, was fired from the public service on 30 April 2009. On 10 December 2008, the Fiji Public Service Commission had informed Tevita Koroi that he was suspended from his position as principal. The Commission criticised Mr. Koroi for speaking out publicly against the military coup. (see the 2011 edition of the Survey).
Government refuses entry to international union delegation: On 13 December, an international trade union delegation, led by ACTU Australia President Ged Kearney, was refused permission to enter the country on arrival at Nadi airport and deported. Delegation members' mobile phones were confiscated until their departure. The delegation had planned to meet Prime Minister Bainimarama to seek a fresh dialogue on human and labour rights in Fiji.
GSP Pressure: In December 2011, the AFL-CIO submitted a country practice petition to the US Trade Representative urging that Fiji be withdrawn from the list of countries benefitting from the Generalised System of Preferences (GSP) until the government respected the conditions regarding internationally recognised workers rights.